—Goran Selanec, Justice, Constitutional Court of Croatia
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2025 columnists, see here.]
The European Union has been fraught with two alarming trends in the last decade and a half. The first and more general trend has concerned democratic backsliding. Since around 2010, more Member States have shown signs of moving away from democratic norms, including weaker checks and balances, increased judicial interference, undermined electoral systems, and tighter media and civil society restrictions. The second trend involves weakening the rule of law, particularly threats to judicial independence. The erosion periodically flared into full-fledged crisis with political branches of government, in some Member Staes, seeking to assert control over courts and judicial appointments thereby weakening the separation of powers that anchor constitutional democracy.
The European Union has been struggling to meet these imposed challenges, fighting to safeguard the very principles that defined its post-war purpose and legitimacy. The main “go-to” mechanism has been the EU’s conditionality mechanism, through which the disbursement of EU funds is linked to respect for the rule of law.[1] Access to EU funds has most likely been the main reason why the aspiring autocrats remained under some restraint. There is a paradox here. While the EU increasingly uses its financial mechanism to rain-in autocratic tendencies, it is often EU funding that is helping European autocrats entrench themselves. Accordingly, and not surprisingly, many have been concerned with the misappropriation of EU funds, particularly the corruption of public officials responsible for those funds, and the effects these have on public trust in democratic accountability. To address those concerns the Union established the European Public Prosecutor Office (the EPPO). [2]
The EPPO is the first EU agency endowed with coercive powers in criminal law, established to initiate investigations and prosecutions regarding crimes affecting the EU’s financial interests.[3] No doubt, its establishment had been a significant milestone in the evolution of the EU legal order. It has also been a very “EU creature”.[4] The EPPO is a supranational institution tasked with the protection of the EU’s interests with its autonomous institutional decision-making structure at the independent central level. Nevertheless, many of its prosecutorial powers—especially those concerning investigations and prosecution—are exercised within the framework of national law. EPPO does not have its own investigators and relies on the national police and national prosecution authorities for investigations. Its investigation measures are also subject to judicial authorization before national courts. At the same time, due to the structure of the EU legal order, its autonomous actions and interactions with national authorities are always subject to scrutiny of the EU Court of Justice, via the Art 267 TFEU reference procedure.
The EPPO is thus a supranational institution embedded in national systems of criminal justice, operating within the constitutional framework of the EU legal order. This is a typical EU approach that balances joint supranational interest in greater effectiveness through harmonization with member states’ desire to maintain policy control, in this case over domestic institutional system in control of administration of national policy of criminal justice.
However, it seems that in recent years the EPPO’s institutional dependence on national authorities has produced (high profile) institutional frictions, particularly when suspicions of corruption or fraud intersected with sensitive political interests at the national level. Consequently, the EPPO’s effectiveness has increasingly been put into question, particularly in those states that are marred by wide-spread corruption.[5] As noted, the EPPO has been established to address growing public concern about fraudulent activities committed while obtaining EU funding. The EPPO can thus investigate and prosecute offences that impact the European Union’s financial interests. They are defined in the PIF Directive and include crimes such as budget fraud, misappropriation of funds, bribery or abuse of public authority.[6] These offences constitute the EPPO’s material competence or jurisdiction (Art 22 of the EPPO Regulation).
Jurisdiction has been a key battleground between the EPPO and national prosecution authorities. One might assume that the determination of whether the alleged act falls under the EPPO’s material competence is made during a substantive examination stage before some, supposedly judicial, authority. Technically that is correct. However, in a typical EU “Kompetenz-Kompetenz” fashion, the question arises who precisely is to determine (and at which point) the demarcation line between the EPPO and national prosecutions in regard of the existence as well as the exercise of material competence.
The Regulation designed the system of “restrained priority” of the EPPO competence. In deciding whether it is allowed to use its prosecutorial powers (in accordance with the criteria set in Art 25/2 and 25/3 of the Regulation), the EPPO is given a decision-making priority. In principle, when it acquires a knowledge of facts capable of justifying a mere suspicion of a crime falling within the scope of Art 22 of the Regulation, the EPPO will autonomously check (through its bodies at the central level) whether the criteria for the use of powers had been satisfied and will independently initiate procedure and employ its prosecutorial powers. The EPPO has the power of initiating an investigation (in accordance with national rules) or to use power of evocation. If the EPPO becomes aware that national authorities had initiated investigation of an offence falling within its mandate, the EPPO can evoke the case, at which point the competent authorities of the Member States must transfer the file to the EPPO and refrain from further investigation. By stopping the national authorities from further action, jurisdiction essentially becomes exclusive.
However, in a typical EU style, the Regulation also provides for a possibility that national prosecution authorities will dispute the EPPO’s autonomous competence evaluation. In a case of disagreement between the EPPO and the national prosecution authorities over the question of whether the criminal conduct falls within the material scope of the EPPO’s competence, the conflict can be brought before the national authorities designated by a Member State (Art 25/6 of the Regulation). Hence, the “restrained priority.” In addition, the Regulation, following its usual deference to national criminal procedural law, does not detail its powers in relation to the EPPO, or specify the institutional character of the designated authority.
At the same time, the Regulation is explicit in terms of who has the (final) authority to resolve the conflict of competences between the EPPO and national prosecution authorities. According to the Art 42/2/c of the Regulation, the EU Court of Justice shall have jurisdiction, in accordance with Article 267 TFEU, to give preliminary rulings concerning the interpretation of Articles 22 and 25 of this Regulation in relation to any conflict of competence between the EPPO and the competent national authorities. Hence, it seems clear that the actual competence to decide in meritum the conflict of competence between the EPPO and national prosecution authority rests with the Court of Justice.
This architecture of the restrained priority competence has exposed a structural vulnerability in practice because the process for settling disagreements is not always transparent or insulated from political influence. This has particularly been the case in Member States that chose to designate their national prosecution authorities – in principle chief state prosecutors or state prosecution councils – as their Art 25/6 national competent body. This institutional solution has certainly been raising some eyebrows, particularly because it is widespread.[7]
First, since national prosecution authorities are active parties to the conflict of competences standing against the EPPO, they are de facto “judex in causa sua”. Hence, there are impartiality concerns. Such structural weakness becomes particularly pronounced in instances where prosecutorial decisions are entwined with political interests, thus increasing the potential for conflicts of interest and selective enforcement. Second, the national prosecution authorities are not a “court” or “tribunal”, which precludes a direct line for a request for a preliminary ruling to be submitted to the CJEU. This raises the question of reversal of the “priority competence” granted to EPPO by the Regulation. Thirdly, if EPPO refuses to yield or a national prosecution authority fails to inform the EPPO about its proceedings, serious issues of fundamental rights protection and the application of the EU Charter of Fundamental Rights arise. If national authorities started their own national criminal proceedings regarding Art 22 PIF offences and acquired res iudicata, the EPPO would effectively be prevented from prosecution. Accordingly, allowing national prosecution authorities to contest or undermine the EPPO’s priority competence insisting on their prosecution privileges raises ne bis in idem risks that may undermine the EPPO’s core purpose.
Because national prosecution authorities may have more immediate incentives to protect domestic actors or interests there are growing concerns about the risk of selective prosecution, delays, or procedural roadblocks increases, ultimately threatening the uniform application of EU law and the credibility of the Union’s commitment to the rule of law. This issue had been raised by the Chief European Prosecutor reacting to the way the conflict between EPPO and Croatian State Attorney had been handled in one of the high-profile corruption cases (a similar conflict had been reported in Spain)[8]. In its submission to the European Commission, the Chief European Prosecutor expressed her concerns about rule of law violations.[9]
So far, the European Commission has called, at least formally, for the conflict of competences between the EPPO and the national prosecution authorities to be handled by independent and impartial judicial bodies, in line with Article 267 TFEU and the general principles of effective legal protection in the EU legal order. However, no actions were taken to address the issues identified in the implementation of the Regulation. Notably, the EPPO too did not take legal steps to bring these issues or its concerns about the Regulation’s interpretation before the Court of Justice.
However, where the EPPO had shown reluctance, others saw an opportunity. A group of representatives in the Croatian Parliament used their privilege to initiate abstract constitutional review of the Croatian law implementing Art 25/6 of the Regulation. They also asked the Croatian Constitutional Court to start an Art 267 TFEU preliminary reference procedure with the Court of Justice in Luxembourg. The case is currently pending. However, faced with the request, the Constitutional Court will have to consider whether to refer or not to refer. If it does, the reference will have far-reaching implications for the EU’s ability to address growing public concern about misappropriation of EU funding and the implication that corruption has on democratic responsibility of public officials and the rule of law in general.
Suggested citation: Goran Selanec, Safeguarding the Rule of Law: The European Public Prosecutor Office’s Role and Challenges, Int’l J. Const. L. Blog, Jul. 11, 2025, at: http://www.iconnectblog.com/safeguarding-the-rule-of-law-the-european-public-prosecutor-offices-role-and-challenges/
[1] See https://www.hrw.org/news/2022/11/24/hungarys-half-promises-should-not-fool-eu-commission.
[2] Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’), OJ L 283, 31.10.2017, 1.
[3] See itsilegas, V. (2021). European prosecution between cooperation and integration: The European Public Prosecutor’s Office and the rule of law. Maastricht Journal of European and Comparative Law, 28(2), 245-264, available at https://journals.sagepub.com/doi/full/10.1177/1023263X211005933#fn61-1023263X211005933.
[4] See H. Herrnfeld, in: H. Herrnfeld, D. Brodowksi and C. Burchard, European Public Prosecutor’s Office: Article-by-Article Commentary, 2021.
[5] See, e.g., Vassileva, Radosveta: The EPPO as a Domesticated Cat: A Perspective from Bulgaria, VerfBlog, 2024/6/13, https://verfassungsblog.de/the-eppo-bulgaria/.
[6] Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law, [2017] OJ L 198/29.
[7] See the study launched by the Commission in April 2022 to assess the compatibility of national legislation with the EPPO Regulation, avaialble at https://www.europarl.europa.eu/thinktank/en/events/details/study-presentation-compatibility-of-nati/20240118EOT08142
[8] See dr. Balázs Márton, The Conflict of Competence between the European Public Prosecutor’s Office and Spanish Prosecutors – Lessons Learned, available at https://eucrim.eu/articles/the-conflict-of-competence-between-the-european-public-prosecutors-office-and-spanish-prosecutors/
[9] https://www.eppo.europa.eu/en/media/news/eppo-raises-concerns-over-rule-law-violations-croatia-following-conflict-competence
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